January 23, 2008

Shooting Lawyers the Bird: The Tribune's Employee Handbook

If it isn't clear by now, the Insider believes in a sense of humor. A few laughs help us get through the working day. So it is with some ambivalence that we tackle the issue of the Tribune Newspaper's new Employee Handbook. Written by a non-lawyer, the handbook attempts to present the myriad issues contained in a handbook in a light, rather flippant tone. It's a fun read. But alas, it's like "shooting the bird" at a policeman: it might be protected as "free speech," but it's still not a very good idea.

Sexual Harassment
The Handbook opens the section on harassment with a warning to people who might be sensitive to the actions of others:

4.1 Working at Tribune means accepting a creative, quirky, intelligent, odd, humorous, diverse, opinionated and sometimes annoying atmosphere.
4.2 Working at Tribune means accepting that sometimes you might hear a word that you, personnally, might not use. You might experience an attitude that you don't share. You might hear a joke that might not consider funny. That is because a loose, fun, non-linear atmosphere is important to the creative process.
4.3 This should be understood, should not be a surprise and is not considered harassment.

Any joke? In any context? The Tribune is basically telling employees to chill out. The sublimely tasteless Borat would love it. This "values statement" is far too general. It could make anyone squirm, not just a labor attorney.

Drug Policy
Here again, you will find language that is unprecedented for an employee handbook:

7.1 If you use or abuse alcohol or drugs and fail to perform the duties required by your job acceptably, you are likely to be terminated. ..Coming to work drunk is bad judgment.
7.2 If you do not use or abuse alcohol or drugs and fail to perform the duties required by your job acceptably, you are likely to be terminated.

The first section seems to imply that being stoned at work is ok, as long as you can still do your job. Yikes! The second section has nothing to do with drug abuse and certainly does not belong in this section of the handbook. It seems to imply that you'd be better off stoned at work and doing your job well - as opposed to sober and performing badly. That certainly reflects the Hollywood version of the newspaper business, but it does not belong in a handbook.

Disability and Workers Comp
The disability statement is pretty straight forward, although it places the burden squarely on the employee:

3.1 Tribune will make reasonable accommodations if you have a disability and are otherwise qualified to perform your job.
3.2 If you need an accommodation, tell your supervisor.

Here is the complete section on workers comp leave:

17.1 State law dictates how Workers' Compensation is handled.
17.2 Please let your supervisor know immediately if you're hurt on the job.
17.3 If this injury is also considered to be a serious health condition under FMLA, Workers' Compensation Leave will be counted as, and run at the same time as FML.

This a bit thin, to say the least. The handbook should emphasize the importance of working safely, reporting all hazards and management's commitment to speed return to work through the use of temporary modified duty.

Employee Rights: No Laughing Matter
Employee Handbooks are generally regarded as quasi-legal contracts, primarily designed to outline the rights and benefits of employment and limit the employer's exposure to lawsuits. Handbooks are rarely read, and when they are, it's not for the entertainment value. The Tribune's attempt to have their handbook mirror the creativity valued in the workplace is well intentioned, but incredibly risky. It won't take long for labor attorneys to pounce and when they do, the Tribune will have to back-pedal furiously to contain the damage. This particular handbook may get a "high five" from Borat, but it's no way to define the employment relationship.

Categories:

7 Comments

Clearly one best not be hurt on the job here. In a veiled way the handbook sets forth and adverserial relationship with regards to anyone having to go on Comp. I am not sure it is legal to run FMLA with comp. If one is injured on the job Comp. pays, period. At least it does in my state. Although the way the laws for comp. are set up here there's a way for comp. to get out of everything unless an injured worker can invest many years in fighting the system. I'm sure the folks who are injured in CA and other states would agree. When an agency is allowed to act as a dictatorship the little guy always loses.

Unfortunately, law often has little to do with common sense! Besides, as a lawyer who spent years defending against harassment claims, I have to say I think most discrimination agencies and courts wouldn't look very favorably on the implication that an employee should just put up with it or get over it.

I would agree that FMLA should not be considered if the applicant is placed on TTD or even PTD. Ever heard of "exclusive remedy"? The attitude at the Tribune is typical of an employer creating an atmosphere in which fraud is allowed to flourish. One can not over emphasize the importance of letting employees know that sexual harassment, drug abuse and workers compensation fraud will not be tolerated. Mechanisms for reporting such activities and the assurance of anonymity of the reporter should be clearly defined and within the employee handbook and reinforced with placards and reminders of various sorts.

When an employer makes it clear to his managers and supervisors that they don’t consider sexual harassment, drug abuse, and the health and well being of our employees serious issues, supervisors will dismiss and ignore reports and witnessed events which may ultimately leave the employer severely exposed to a litany of liability and punitive damages.

How hypocritical for a news paper to report on those who engage in activity outside the bounds of acceptable behavior and do little to hold themselves and their employees to the same standard.

The handbook's disability statement "it places the burden squarely on the employee" reflects the legal restrictions under which an employer must operate relative to such topics. Employers are not permitted to make assumptions about an individual's physical capabilities, despite what might be observed, including factors such as wheelchair use, absence of limbs, visual impairment, etc. An employer can only ask if an applicant has any limitations which would require accomodation. Thus, it is law, not policy, which places the burden on the employee.

It is perfectly legal to run FML with Workers Comp as long as the injury/illness meets the legal definition of a serious health condition and you notify the employee that their leave is counted against their FML entitlement.